Search form

Featured Topics

To promote stable, constructive labor-management relations through the resolution and prevention of labor disputes in a manner that gives full effect to the collective-bargaining rights of employees, unions, and agencies.

This matter is before the Authority on an exception to
the award of Arbitrator I. B. Helburn filed by the Union under section 7122(a)
of the Federal Service Labor- Management Relations Statute (the Statute) and
part 2425 of the Authority's Rules and Regulations. The Agency did not file an
opposition to the Union's exception.

The Arbitrator found that the grievance was not
arbitrable because the Union failed to timely file the grievance at step 3 of
the grievance procedure. For the following reasons, we conclude that the
Union's exception provides no basis for finding the award deficient.
Accordingly, we deny the exception.

II. Background and Arbitrator's Award

The Union filed a written grievance over the grievant's
1-day suspension for using profanity and other improper language towards a
supervisor. The step 2 deciding official denied the grievance on April 12,
1989. The Union then filed, and the Agency approved, two requests for
extensions of time to file the grievance at step 3 of the parties' negotiated
grievance procedure. The Arbitrator found that on April 27, the Union filed a
third request for "'extension of time limits, to C.O.B. May 9, 1989, to process
subject grievance to step 2.'" Award at 2. The Agency approved the request. On
May 11, 1989, the Union filed the grievance at step 3. On June 15, the Agency
denied the grievance on the basis that it was untimely filed at step 3 of the
negotiated grievance procedure.

The Union invoked expedited arbitration and, before the
Arbitrator, the Agency asserted that the matter was not arbitrable. The
Arbitrator found that "the April 27 request erroneously referred to step 2,"
and was intended to refer to step 3. Award at 3. He determined that the "Union
did not follow the step 3 limit in this case, thus losing the right to
arbitrate on the merits because procedural compliance is a prerequisite to
arbitration." Id. Accordingly, the Arbitrator concluded that the
grievance was not arbitrable.

III. Union's Exception

The Union contends that the award is deficient because
the Arbitrator based his decision on an extension of time request which did not
concern the grievant, but rather, concerned another employee with the same last
name as the grievant. According to the Union, a request for an extension of
time until May 13, 1989, to process the grievance was approved by the Agency on
May 5, 1989. The Union asserts that it "can only assume that the improper
extension request was put into the grievance package for the sole purpose as to
confuse the Arbitrator and discredit the Union[']s case." Exception at 2. The
Union states that "[h]ad the Union been put on notice that the advocate for the
Agency intended to bring up this threshold issue . . . the Union would have
been better prepare[d] to deal with this issue." Id. The Union requests
that the Authority set aside the Arbitrator's award and direct the Arbitrator
to rule on the merits of the grievance.

IV. Analysis and Conclusion

The Union contends that the grievance was timely filed at
step 3 based on a request for an extension of time which had been granted by
the Agency. The Union asserts that it did not foresee the arbitrability
question being raised and that it would have been better prepared at the
hearing if it had been apprised that the question would be raised. Based on
these assertions, as well as the Arbitrator's award, we conclude that evidence
concerning the extension of time on which the Union relies was not submitted to
the Arbitrator.

There is no question that evidence concerning the
extension of time was available to the Union at the time of the arbitration
hearing. Further, because the grievance had been denied at step 3 on the ground
that it was untimely filed, there is no question that the Union was, or should
have been, aware of the existence of a question concerning timeliness. As the
evidence was available at the time of the arbitration hearing, its submission
to us provides no basis for finding the award deficient. See, for
example, AFGE Local 1815 and U.S. Army Aviation Center, 26 FLRA 610
(1987) (arbitration awards are not subject to review on the basis either of
evidence in existence at the time of the arbitration hearing but not presented
to the arbitrator or evidence that has come into existence only since the
arbitration hearing). SeealsoWashington-Baltimore Newspaper
Guild, Local 35 v. Washington Post Company, 442 F.2d 1234, 1238 (D.C. Cir.
1971) ("Unless parties are bound by the records made before the arbitrators,
the piecemeal or staggered submission of evidence would be likely to erode the
effectiveness of arbitration as a speedy and efficient forum for resolving
labor disputes.").

The Union's exception provides no basis on which to find
the Arbitrator's award deficient. Accordingly, we will deny the exception.
SeeNaval Plant Representative Office and National Association of
Government Employees, Local R1-143, 34 FLRA 234 (1990) (denying exception
to award finding that grievance was not arbitrable because it was not filed
within the time limit set forth in the parties' collective bargaining
agreement).